In a welcome win for private property rights, the Michigan Supreme Court unanimously ruled that law enforcement violated the Fourth Amendment by trespassing without a warrant. The decision centered on a controversial tactic known as a “knock and talk,” which involves law enforcement approaching homes in order to question the residents and win permission to search inside. Notably, this ruling echoes a dissent written last year by none other than Neil Gorsuch, before he was elevated to the U.S. Supreme Court.

The case dates back to March 18, 2014, when Michael Frederick was jostled awake at 4 o’clock in the morning by loud, insistent knocking. Answered the door, Frederick was greeted by seven armed and vested officers from the Kent Area Narcotics Enforcement Team (KANET). KANET officers asked Frederick if he had any marijuana butter. After he consented to a search, officers found both marijuana butter and a batch of pot brownies in his home.

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A little over an hour later, KANET officers repeated the knock and talk at the home of Todd Van Doorne. He agreed to a search, allowing law enforcement to find and confiscate marijuana butter. At the time, both Frederick and Van Doorne worked as jail guards in the Kent County Sheriff’s Department. Both have since lost their jobs and been charged with cannabis offenses.

Although Frederick and Van Doorne had valid medical marijuana cards, a circuit court judge ruled that the two men owned too much cannabis to be protected under Michigan’s medical marijuana laws.

Both men challenged the constitutionality of the knock and talks, though they were rebuffed at the trial and the appellate court level. The Michigan Court of Appeals even compared a predawn visit by armed officers of the state to delivering newspapers. But on June 1, the Michigan Supreme Court ruled in favor of Frederick and Van Doorne.

To reach her decision, Justice Bridget McCormack relied heavily on a 2013 opinion by the U.S. Supreme Court, Florida v. Jardines. In that case, Miami-Dade police brought a drug dog onto the front porch of a suspected grow house owned by Joelies Jardines. After sniffing at the front door, the dog “alerted,” which police used as the basis for a warrant. With warrant in hand, police searched the home and found cannabis plants, and subsequently charged Jardines with trafficking.

Writing for the majority (which, in a highly unusual split, consisted of Justices Ruth Bader Ginsburg, Clarence Thomas, Sonia Sotomayor and Elena Kagan), Justice Antonin Scalia ruled that police violated the Fourth Amendment, which in turn required the evidence obtained to be suppressed.

By walking the drug dog onto Jardines’ porch, Miami-Dade police entered the “curtilage” of his home, which includes the area “immediately surrounding and associated with the home.” Under the common law, the curtilage has long been considered part of the home for scrutinizing searches and seizures and could even extend as far as 200 yards away.

Yet police who enter someone’s front porch or knock on the door aren’t automatically trespassing. As Scalia noted, there are an “implicit license” and “background social norms” that dictate when and why visitors can appropriately approach a home, which even “Girl Scouts and trick-or-treaters” know. So as long as law enforcement respects that implicit license, they can knock and talk without a warrant, “precisely because that is ‘no more than any private citizen might do.’”

Of course, selling cookies or asking for candy is completely different than conducting a narcotics investigation with a canine unit. “To find a visitor knocking on the door is routine,” Scalia wrote. “To spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”

Notably, even Justice Samuel Alito agreed in his dissent that “a visitor [cannot] come to the front door in the middle of the night without an express invitation.”

The parallels to Frederick and Van Doorne’s cases should be clear. Applying Jardines, the Michigan Supreme Court ruled that “because these knock and talks were outside the scope of the implied license, the officers trespassed on Fourth-Amendment-protected property.” After all, “a knock and talk is not considered a governmental intrusion precisely because its contours are defined by what anyone may do.”

In addition, the court sent the cases back to the trial court to determine if the consent given by Frederick and Van Doorne was “sufficiently attenuated from the warrantless search.” At least one member of the Michigan Supreme Court seems to think the “consent” was a mirage. Back in March, Justice Richard Bernstein posed the following question to the government at oral argument:

Let’s go to our scenario here which is our case: It’s 4 in the morning, there’s headlights that are shining into your house; there’s a number of different officers that are now on the premises; they’re wearing tactical gear; they have weapons; and they approach your front door. Do you think that the ordinary citizen in that situation feels that they have an obligation to comply?

“The rule of law triumphed here,” Bruce Block, the defense attorney for Van Doorne told a local news station. “A person’s house is still his castle. You can live there, you can eat there and you can yes, even sleep there, without being worried about police coming in at inappropriate times.”

Should the Frederick and Van Doorne cases or a similar knock and talk reach the U.S. Supreme Court, they may find a sympathetic ear in the bench’s newest member. Last year, in United States v. Carloss, the 10th U.S. Circuit Court of Appeals upheld a knock and talk as within the bounds of implied license, even though the defendant had posted multiple “No Trespassing” signs on his property and on the front door. The only dissenter was then-Judge Gorsuch.

Gorsuch slammed the government’s suggestion that “its officers enjoy an irrevocable right to enter a home’s curtilage to conduct a knock and talk:”

A homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.

For Gorsuch, that thinking seemed “difficult to reconcile with the Constitution of the founders’ design.” He acknowledged that requiring warrants for knock and talks in cases like Carloss could make law enforcement’s job “marginally more difficult…but obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits.”

“Our duty of fidelity to the law requires us to respect all these law enforcement tools,” Gorsuch added. “But it also requires us to respect the ancient rights of the people when law enforcement exceeds their limits.”

I'm a writer and legislative analyst at the Institute for Justice (IJ), a public interest law firm. As a member of IJ’s Communications team, I regularly write opeds and blog about economic liberty, private property rights, the First Amendment and judicial engagement. On the ...